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Comparative Methodologies 1
Ran Hirschl

Introduction 11
1 What is Comparative Constitutional Law? Two Basic Distinctions 13
2 Comparative Methodologies and Research Designs 18
3 Cross-​Disciplinary, Multi-​Method and Collaborative Research 34
Conclusion 37
Further Reading 38

Introduction

From its beginnings as a relatively obscure and exotic subject studied by

a devoted few, comparative constitutionalism has developed into one of
the more vibrant and exciting subjects in contemporary legal scholar-
ship, and has become a cornerstone of constitutional jurisprudence and
constitution-​making in an increasing number of countries worldwide. This
tremendous renaissance in comparative constitutional inquiry reflects a
confluence of factors. Chief among them are extensive democratization
and constitutionalization trends worldwide; the internalization of the
legal profession and of legal education; and the rise of communication
and information technologies that facilitate considerably the diffusion
of constitutional concepts, and foster cross-​national jurisprudential dia-
logue. The result has been an ever-​expanding interest among scholars,
judges, practitioners and policymakers in the transnational migration of
constitutional ideas, and in the comparative study of constitutions and
constitutionalism more generally.
And yet, despite this tremendous renaissance, and in stark con-
trast to other areas of research that define themselves as comparative
(including comparative constitutional law’s neighbouring fields –​com-
parative law and comparative politics –​both of which sport extensive
and sophisticated methodological debates), the methodological, research

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 12 Ran Hirschl

design, case selection and data analysis aspects of comparative con-

stitutional inquiry –​how should we study constitutionalism as a dis-
tinct phenomenon with multiple forms and manifestations across time
and place –​remain largely undertheorized and until recently, seldom
discussed.1
In the following pages, I outline a few elements that are vital to
understanding the array of comparative methodologies deployed in the
study of constitutions and constitutionalism across time and place. Such
understanding, I suggest, is essential for sustaining the current revival of
comparative constitutionalism as a distinct and valuable area of scholar-
ship. The discussion proceeds in three main steps. I begin with two basic
distinctions concerning the meaning of the ‘comparative’ in comparative
constitutional inquiry: (i) the various epistemological branches of con-
stitutional law scholarship and the comparative angle in them; and (ii)
the various professions and stakeholders engaged in comparative con-
stitutional inquiry and their different aims and practices. In the second
part, I identify and discuss the main methodologies and research designs
commonly deployed in comparative study of constitutions and constitu-
tionalism across time and place.
These various approaches to comparative inquiry may be distinguished
from one another based on their aimed level of abstraction and gen-
eralization, and include the generation of encyclopaedic knowledge,
classifications or taxonomies; self-​reflection through analogy and con-
trast; concept formation through multiple description; idiographic studies
that aim to produce in-​depth understanding of given constitutional setting;

1
For an initial attempt to deal with these questions, see R. Hirschl, Comparative Matters: The
Renaissance of Comparative Constitutional Law (Oxford University Press, 2014); as
well as J. Husa, ‘Comparison’, in D.S. Law and M. Langford (eds.), Research Methods
in Constitutional Law: A Handbook (Edward Elgar Publishing, 2018); S. Gardbaum,
‘How Do and Should We Compare Constitutional Law’, in Samantha Besson et al. (eds.),
Comparing Comparative Law (Schulthess, 2017), 109–​126; T. Ginsburg, ‘How to Study
Constitution-​Making: Hirschl, Elster, and the Seventh Inning Problem’ (2016) 96 Boston
University Law Review 1347–​1358; R. Hirschl, ‘From Comparative Constitutional Law to
Comparative Constitutional Studies’ (2013) 11 International Journal of Constitutional Law
1–​12; V.C. Jackson, ‘Comparative Constitutional Law: Methodologies’, in Michel Rosenfeld
and András Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law (Oxford
University Press, 2012), 54–​74; V.C. Jackson, ‘Methodological Challenges in Comparative
Constitutional Law’ (2010) 28 Penn State International Law Review 319–​326; R. Hirschl,
‘The Question of Case Selection in Comparative Constitutional Law’ (2005) 53 American
Journal of Comparative Law 125–​ 155; M. Tushnet, ‘The Possibilities of Comparative
Constitutional Law’ (1999) 108 Yale Law Journal 1225–​1309.

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 Comparative Methodologies 13

and nomothetic studies that draw on controlled comparisons to formulate

and test hypotheses with some general applicability to the comparative
constitutional universe. In the third part, I address some of the structural
and disciplinary difficulties embedded in the comparative constitutional
inquiry and point to the rise of cross-​disciplinary, multi-​method and col-
laborative research as providing a set of plausible solutions to some of
these challenges.
The upshot of the chapter is threefold: (i) there is no magic bullet or
one-​size-​fit-​all research design ‘formula’ for a field as rich and diverse
as comparative constitutional studies; therefore, methodological plur-
alism is an asset and a necessity; (ii) the sensibility and rationality of
comparisons boil down to the concrete perimeters of any given com-
parison, the scope and nature of the substantive claim they purport to
advance, and whether the case-​selection criteria and research method-
ologies deployed are properly tailored to suit the theoretical or empirical
question a given comparative study is set to address; and (iii) ultim-
ately it is the comparative element that separates comparative constitu-
tional law from its older, more established, supposedly self-​contained and
undoubtedly less cosmopolitan sibling –​constitutional law. Hence, an
understanding of the ‘comparative’ in comparative constitutional law –​
its various rationales, methods, limitations and possibilities, alongside the
contours and contents of the audacious comparativist’s toolkit –​is essen-
tial for the field’s renaissance to persist.

1 What is Comparative Constitutional Law?

Two Basic Distinctions

Before exploring the various methodologies and research designs

deployed in comparative constitutional law, two basic distinctions should
be made. First is the distinction between constitutional law, constitutional
theory, constitutional studies, and the comparative aspect in each of these
branches of scholarship. The better part of academic writing about the
constitutional domain –​often referred to as constitutional law –​ focuses
on constitutional texts or on constitutional jurisprudence, often construed
as the study of judicial interpretation of constitutional provisions and
constitutional principles. The epistemological focus of this branch of
scholarship is often on the internal logic, hierarchy and interpretive

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 14 Ran Hirschl

coherence of constitutional law as an autonomous legal system. Critical

assessment of constitutional rulings and judicial reasoning, further-
ance or departure from relevant precedents and established approaches,
innovative structures or doctrines and their intra-​constitutional effects,
and debates about how a given court should have decided a given case or
set of cases are, generally speaking, the prevalent scholarly genres here.
In recent years, this type of constitutional law scholarship increas-
ingly engages with closely related legal fields such as international law
or administrative law, and occasionally also with immigration law or
criminal law, to the extent that the norms and practices established in
these areas of public law are or ought to be in close dialogue with consti-
tutional principles. Legal periodicals in North America and Europe, and to
an increasing extent in leading Asian and Latin American centres of high
learning too, present countless examples of this type of constitutional
scholarship. As it focuses on intra-​constitutional analysis, much of this
type of scholarship is read exclusively by stakeholders within the legal
profession: legal academics, judges, law students and lawyers.
So-​called constitutional theory is another important branch of consti-
tutional scholarship. It often departs from analysis of the constitutional
text and its judicial interpretation to explore foundational principles and
normative considerations that ought to guide the constitutional domain
and its various stakeholders. It engages in a search for ethically sound
and morally appealing approaches to common problems in constitutional
law such as the legitimacy of judicial review, or the desired scope and
nature of abstract notions such as ‘equality’ or ‘human dignity’. Most
contributors to this area of scholarship have formal training or at least
solid background in political philosophy or legal theory; the main mode
of scholarship is philosophical or normative argumentation akin to schol-
arly modes deployed in closely related fields such a philosophy, political
theory or the history of ideas. Academic writings within this genre of con-
stitutional scholarship are frequently read beyond the lawyerly circles,
most notably by philosophers and political theorists interested in the nor-
mative foundations of the constitutional order, what should be its moral
priorities, and the justifiable interpretation of its constitutive texts.
A rapidly expanding body of literature –​elsewhere I referred to it as con-
stitutional studies –​complements the legal and normative approaches to
the study of constitutions, by deploying more social-​scientific approaches
and methods to the study of constitutions and constitutional development

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 Comparative Methodologies 15

more broadly. Generally speaking, this emerging branch of scholarship

sees the constitutional domain as an integral part of the broader political
context, whether institutional, ideological, societal or material, within
which the constitutional domain evolves and operates. Consequently, the
constitutional domain is perceived as extending beyond constitutional
texts, constitutional principles or constitutional jurisprudence, to encom-
pass historical trends, political interests, economic incentives, strategic
choices and power struggles that affect and are shaped by constitutional
institutions. Certain threads within this body of scholarship, most notably
the study of constitutional design, combine social-​scientific empirical
research with an explicit normative outlook (peace, stability, democ-
racy). Many contributors to this type of constitutional scholarship have
acquired formal training or possess some background in disciplines such
as history, sociology, political science or economics. Consequently, social
science research methods such as statistical analysis of large data sets,
surveys, archival work, in-​depth interviews, computerized content ana-
lysis, and occasionally multi-​method studies are deployed in an attempt
to understand the constitutional domain in its broader context.
The advent of comparative constitutional inquiry adds another epis-
temological layer to the study of constitutionalism. It is increasingly
evident in all three branches of constitutional inquiry: constitutional
law (e.g. reference to comparative constitutional jurisprudence or com-
parative accounts of proportionality and other approaches to constitu-
tional interpretation); constitutional theory (e.g. comparative normative
analysis of concepts such as ‘human dignity’, ‘equality’ or ‘freedom
of expression’); and constitutional studies (comparative studies of the
origins and consequences of constitutional institutions or comparative
analyses of the constitutional sphere’s interaction with the social and
political environment within which it operates). Colloquially, the word
‘comparative’ is often used in the sense of ‘relative to’ (e.g. ‘he returned
to the comparative comfort of his home’) or to refer to words that imply
comparison (e.g. ‘better’, ‘faster’, etc.). The scientific use of ‘comparative’
is defined in the Oxford English Dictionary as ‘involving the systematic
observation of the similarities or dissimilarities between two or more
branches of science or subjects of study’. These definitions seem intuitive
enough –​yet, the meaning of the comparative in comparative consti-
tutional law has proven quite difficult to pin down. Situated between
constitutional law and comparative law, and, more generally, between

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 16 Ran Hirschl

law and political science –​constitutional law regulates political life and
as such is arguably the most overtly political branch of all legal fields –​
comparative constitutional law has become a bit of a catch-​all label to
what in effect are quite different types of studies. In its most basic def-
inition, it refers to the study of constitutional systems or their various
components across time and place, with an aim of generating some kind
of analytical yield by the act of comparison. The nature of that analytical
yield itself may be descriptive, taxonomical, hermeneutic, conceptual,
normative, explanatory or any combination of these and other types of
scholarly inquiry.
The most basic understanding that virtually all contributors to com-
parative constitutional inquiry share is that elements and manifestations
of constitutionalism across time and place share many common features
and are therefore comparable. As such, comparative constitutional inquiry
rejects the ‘culturalist-​relativist’ view within comparative law according
to which each legal system is an idiosyncratic, non-​ comparable by-​
product of its own shared history, culture and aspirations. It also objects
to the constitutional sovereigntist view that denounces comparative con-
stitutional inquiry, in particular in its comparative constitutional juris-
prudence guise, as it is undermining domestic constitutional traditions
and institutions viewed as inherently more authentic than any external
constitutional orders or preferences. However, even if one brushes aside
the extreme contextualist position, it is undeniable that due to its epis-
temological nature, the comparative study of constitutions has taken
a distinctly more cosmopolitan direction than that taken by its more
established relative –​the study of constitutional law in a given country
(the United States is of course a prime example) that has long been
dominated by jurists and legal academics who are based in that country
and who master its own laws.
A second key distinction is who is conducting the comparative con-
stitutional inquiry, in what capacity and for what purpose? Unlike other
comparative disciplines (e.g. comparative literature or comparative psy­
chology) that are confined, by and large, to the academic world, compara-
tive constitutional inquiry is pursued within and beyond the ivory tower
itself. What makes the understanding of the ‘comparative’ in compara-
tive constitutional law so essential is the various vocational, jurispruden-
tial, academic and scientific stakeholders involved in practising the art of
comparison.

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 Comparative Methodologies 17

Undoubtedly, the constitutional lawyer, the judge, the law professor

qua professor, the constitutional drafter, the normative legal theorist and
the social scientist engage in comparison with different ends in mind.
A lawyer, for instance, may be forgiven for selectively using comparative
evidence in an attempt to enhance her client’s case. This is, after all, her
professional and ethical prerogative. A judge who wishes to make a good
public policy decision may look carefully at other jurisdictions that have
been contemplating the same issues. Her goal is to write an informed,
well-​reasoned judgment. A comparative quest for what appears to be the
‘best’ or ‘most suitable’ constitutional solution to a given problem, seems
appropriate and relevant. It often involves comparisons by distinction,
analogy and contrast. Similarly, constitutional drafters who are seeking
an effective solution for a troubled polity, would be advised to compara-
tively explore relevant alternatives that have been tried in other, similarly
situated, settings.
A law professor trying to illustrate to her students the variance across
countries with regard to, say, the law of reproductive freedoms would
be well advised to survey the state of affairs with respect to the right to
have an abortion in a few pertinent polities. Such type of comparison
contributes to what may be termed ‘concept formation through multiple
description’. It may take the form of a systematic taxonomical account
of all forms and manifestations of a given constitutional phenomenon
(e.g. ‘federalism’, ‘equality’, ‘judicial activism’ or ‘freedom of religion’),
or a more selective account of the main displays of that phenomenon, so
as to effectively accomplish the pedagogical goal. Aptly, this approach
serves as the organizing principle of most leading textbooks in compara-
tive constitutional law.2 Likewise, a social scientist who wishes to illus-
trate to her students the significance of certain constitutional phenomena
(e.g. ‘parliamentarism’, ‘presidentialism’, ‘bi-​‘ or ‘uni-​cameralism’) rightly
draws on descriptive accounts involving analogy and contrast to illus-
trate the point. The constitutional drafter or consultant involved in a
given constitution-​ making exercise is interested in concrete constitu-
tional mechanisms deployed in other, similarly situated, constitutional
settings. Meanwhile, the legal philosopher or constitutional theorist is
interested in formulating moral justifications or principles for best

2
See, e.g., V.C. Jackson and M. Tushnet, Comparative Constitutional Law (3rd edition;
Foundation Press, 2014).

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 18 Ran Hirschl

practices at the ought (rather than the is) level, and may thus be forgiven
for supporting her insights with a small number of favourable yet pos-
sibly unrepresentative cases. However, an attempt to explain or establish
causality warrants a more methodologically astute approach. One cannot
move freely from engaging with a specific purpose for comparative work
(e.g. descriptive, taxonomical, normative, causal, etc.) to engaging with
another without adjusting one’s case-​selection principles and applicable
methodologies correspondingly. Accordingly, the researcher whose aim
is to understand the causes and consequences of a given constitutional
dynamics must consider seriously principles of controlled comparisons,
inference-​oriented research design, case selection and data analysis.

2 Comparative Methodologies and Research Designs

Within constitutional scholarship that is widely accepted as comparative,

the term ‘comparative’ is often used indiscriminately to describe what, in
fact, are several different types of scholarship: (i) freestanding, single-​
country studies –​often quite detailed and ‘ethnographic’ in nature –​that
are characterized as comparative by virtue of dealing with a country other
than the author’s own (as any observer is immersed in their own (consti-
tutional) culture, studying another constitutional system involves at least
an implicit comparison with one’s own); (ii) genealogies and taxonomic
labelling of types or categories of constitutional systems, old or new; (iii)
multi-​author studies (often in the form of symposium journal issues or
edited collections) of constitutional law in selected polities within a given
region or continent; (iv) surveys of foreign constitutional law aimed at
finding the ‘best’, most effective or most suitable set of constitutional
rules or constitutional principles across cultures; (v) references to the con-
stitutional mechanisms or high court rulings of other countries aimed at
engendering self-​reflection through analogy and contrast; (vi) concept
formation through multiple descriptions of the same constitutional phe-
nomena (e.g. equality, expression, reproductive freedoms) across coun-
tries; (vii) normative or philosophical contemplation of abstract concepts
such as ‘constitutional supremacy’, ‘constitutional identity’, ‘trans-
national/​ supranational/​ global constitutional order’, etc., often accom-
panied by casual reference to constitutional jurisprudence in one or more
jurisdictions; (viii) careful ‘small-​N’ analysis of a handful of case studies

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 Comparative Methodologies 19

aimed at advancing causal arguments that may be applicable beyond the

studied cases; and (ix) ‘large-​N’ studies that draw upon multivariate sta­
tistical analyses of a large number of observations, measurements, data
sets, etc. in order to determine correlations among pertinent variables
or the spread over time and space of certain constitutional structures
and practices. More often than not, these last two research modes pur-
port to draw upon controlled comparison and inference-​oriented case-​
selection principles in order to assess change, explain dynamics, and
make inferences about cause and effect. As such, these modes of inquiry
are often deployed by scholars who study constitutional development
over time and across space, or by scholars who are interested in the effi-
cacy of certain constitutional mechanisms across various settings.
Taken as a whole, these various comparative research designs may be
distinguished from one another based on their aimed level of abstrac-
tion and generalization (e.g. generation of encyclopaedic or taxonomical
knowledge; self-​reflection through analogy and contrast; concept forma-
tion through multiple description; idiographic/​hermeneutic study; nomo-
thetic study). Clear response to this question provides the scholar with a
direction with respect to methodology, case selection and research design.
In the following pages, I consider the basic logic of these comparative
research designs and illustrate their successful deployment in compara-
tive constitutional scholarship.
Arguably the most fundamental type of comparative constitutional
inquiry is ontological in nature, engaging in mapping and classifying
elements of worldwide constitutional universe in a systematic way
that provides basic vocabulary and categorizations, surveys pertinent
developments, and allows researchers, jurists and policy makers to gain
knowledge of constitutional systems and to engage in simple comparisons
in an ever-​changing constitutional environment worldwide. As in any
scientific domain, the creation of ontologies, taxonomies, conceptual
maps and semantic webs, let alone the provision of accurate information
delivered in a sophisticated, well thought out fashion, are an essential
building bloc of theory-building. It is hard to overstate the significance
of such studies, not least as linguistic barriers and access to up-​to-​date
information remain two of the main practical obstacles in the compara-
tive study of constitutions and constitutional institutions across time
and place.

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 20 Ran Hirschl

Three recent illustrations of this mode of scholarship, which all utilize

in a sophisticated way advancements in information technology to pro-
vide an invaluable service to the comparative constitutional community
worldwide, are the Constitute dataset and website (provides a search-
able dataset of all written national constitutions from the late eighteenth
century onwards; allows for synchronic and diachronic comparisons by
hundreds of pre-​defined terms and categories); the ICONnect ongoing
‘year in review’ project (provides approximately fifty single-​ country
annual surveys on major constitutional developments and debates in
each of the surveyed countries; each report is written by a team of local
experts and addresses de facto, so-​called ‘small-​c’ constitutionalism, in
addition to formal, de jure developments); and the ConstitutionNet project
(provides ‘real-​time’ commentary on constitutional developments world-
wide, with a focus on global south settings that are often absent from
standard academic discourse).
It is material to note that, unlike in comparative law, classification of
a given constitutional system within the ‘legal traditions’ or ‘family trees
for legal systems’ matrix coined by Rene David and further developed by
Zweigert, Kötz and others, is not common in comparative constitutional
inquiry. This may be because the rise of transnational and international
rights regimes and the emergence of so-​called ‘global constitutionalism’ –​
a supposedly Esperanto-​like language of constitutional law and jurispru-
dence –​are increasingly defying classical legal families (e.g. common law,
civil law) distinctions. Although ‘legal tradition’ still accounts for consid-
erable differences in modes of constitutional adjudication, reasoning and
foreign citation sources, legal families cannot explain why constitutional
jurisprudence in countries as different as Germany, Spain, Canada, Korea,
Colombia and South Africa looks progressively similar.
An increasingly common mode of comparative constitutional inquiry,
engages with cross-​jurisdictional constitutional ‘pollination’ pertaining
to several different objects of migration: constitutional structure (i.e., the
very architecture of a given constitutional system and its organs); consti-
tutional interpretation techniques and modes of analysis (e.g., originalism,
purposive interpretation, proportionality); and comparative jurispru-
dence, namely selective judicial reference to constitutional concepts and
constitutional court rulings, precedents and legal analysis. In the latter
scenario, foreign constitutional jurisprudence may be referenced as a
‘persuasive authority’, as an interpretive aid (so that the ruling does not

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 Comparative Methodologies 21

appear arbitrary), as a testament to a given rule’s functionality in other

jurisdictions, as a benchmark against which to compare a given consti-
tutional system’s take on the issue at stake, or more strategically as a
legitimacy-​enhancing means.
As is well known, in its landmark 1995 Makwanyane ruling –​deter-
mining the unconstitutionality of the death penalty –​the newly established
South African Constitutional Court examined in detail pertinent jurispru-
dence from Botswana, Canada, Germany, Hong Kong, Hungary, India,
Jamaica, Tanzania, the United States, Zimbabwe, the European Court of
Human Rights and the United Nations Committee on Human Rights. In
total, it refers to no less than 220 foreign case citations from eleven
national and three supranational courts.3 Observers often point out that
Article 39 of the South African Constitution explicitly permits courts
to look to foreign jurisprudence and in fact mandates that they consult
international law when dealing with rights cases. It is hardly surprising
that Justice Dikgang Moseneke, Deputy Chief Justice of South Africa,
stated in 2010 that: ‘[I]‌t is no exaggeration to observe that our decisions
read like works of comparative constitutional law and where appro-
priate we have not avoided relying on foreign judicial dicta or academic
legal writings in support of the reasoning we resort to or conclusions we
reach.’4 Even the US Supreme Court –​often considered (though perhaps
incorrectly) the last bastion of principled resistance to foreign citations
among the world’s leading national high courts –​has hesitantly joined
the comparative reference trend.5 Whereas on substantive grounds such
comparative reference may be convincingly justifiable, on pure methodo-
logical grounds, it is sometimes pursued in an a-​systematic, result-​driven
fashion that inadvertently lends credence to the ‘cherry-​picking’ critique
targeted at it.
In its more advisory, policy-​oriented guise, the ‘quest for best practice’
mode of comparative constitutional inquiry takes the form of academic
or think-​tank reports on possible constitutional solutions to transitional

3
See C. Rautenbach and L. du Plessis, ‘In the Name of Comparative Constitutional
Jurisprudence: The Consideration of German Precedents by South African Constitutional
Court Judges’ (2013) 14 German Law Journal 1539–​1577.
4
D. Moseneke, ‘The Role of Comparative and Public International Law in Domestic Legal
Systems: A South African Perspective’, Advocate (December 2010).
5
See, e.g., S. Breyer, The Court and the World: American Law and the New Global Realities
(Knopf, 2015).

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 22 Ran Hirschl

post-​conflict or post-​ authoritarian settings or to polities torn along

ethnic, religious and linguistic lines. The common principle that guides
such reports is identifying the best or most suitable set of constitutional
solution to a given polity by looking at a variety of comparable or poten-
tially applicable arrangements in similarly situated polities. The emphasis
is on result-​driven comparative engagement in search for ‘success stories’;
a given set of constitutional arrangements that has proven effective in
addressing a certain set of problems in polity X, may be implemented
in similarly situated polities Y or Z. Since such reports are often written
with an explicit policy goals mindset (e.g. quest for political stability,
institution-​building, democratization, power-​sharing, peace-​keeping),
they do not aspire to draw on random sampling or on comprehensive
surveys of all available settings or solutions, but focus instead on what
has been proven workable or effective in comparable settings.
When we turn our gaze to more conventional academic modes of com-
parative constitutional scholarship, a continuum may be drawn between
idiographic and nomothetic modes of inquiry. At one end stand idiographic
studies that draw on thorough, nuanced analysis of a single constitutional
system. This type of study may yield illuminating ‘ethnography-​like’ accounts
of constitutional transformation in given polities.6 Ideally, it may also spawn
general insights or lessons for other, similarly situated constitutional settings,
although the stated purpose of such studies is often more modest than that,
and is confined to understanding the unique traits of the constitutional
domain in a single setting. Recent examples of well-​executed ‘constitutional
ethnographies’ are Michaela Hailbronner’s Tradition and Transformation (a
meticulous account of the rise of German constitutionalism in the post-​World
War II era);7 Benjamin Sconthal’s examination of Buddhism-​infused con-
stitutionalism in Sri Lanka;8 Donald Horowitz’s Constitutional Change and
Democracy in Indonesia;9 Brian Ray’s Engaging with Social Rights (a detailed
study of social rights jurisprudence and implementation in post-​apartheid

6
K.L. Scheppele, ‘Constitutional Ethnography: An Introduction’ (2004) 38 Law & Society
Review 389–​406.
7
M. Hailbronner, Tradition and Transformations: The Rise of German Constitutionalism
(Oxford University Press, 2015).
8
B. Schonthal, Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri
Lanka (Cambridge University Press, 2016).
9
D. Horowitz, Constitutional Change and Democracy in Indonesia (Cambridge University
Press, 2013).

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 Comparative Methodologies 23

South Africa);10 or the various single-country volumes published under

the auspices of the Constitutional Systems of the World book series (e.g.
Cheryl Saunders’s The Constitution of Australia: A Contextual Analysis,
Shigenori Matsui’s The Constitution of Japan: A Contextual Analysis,
Andrew Harding’s The Constitution of Malaysia: A Contextual Analysis,
as well as other books published in the same series on the constitutions
of Canada, France, Germany, the United Kingdom, Ireland, Brazil, Poland,
China, Indonesia, Pakistan, Thailand, Vietnam and Israel).11 In recent years,
entire research handbooks have been devoted to constitutional law in a
given polity (e.g. The Oxford Handbook of the Canadian Constitution or The
Oxford Handbook of the Indian Constitution).12 Each of these studies care-
fully canvasses a single constitutional system, explains its form and oper-
ation, and provides a critical evaluation of its foundations, evolution and
contemporary challenges. Unique elements in each setting are defined as
such by reference to comparative anchors.
Critical reflection by an external observer on a given polity’s con-
stitutional law and institutions is a subcategory in this genre of com-
parative constitutional studies. The study of constitutional system X by
a researcher steeped in constitutional background Y, it may be argued,
meets the basic requirement of comparative analysis –​the existence of at
least two targets of observation or points of view –​because the observer
at least implicitly perceives and describes system X in contrast with
system Y. Montesquieu’s Persian Letters or de Tocqueville’s Democracy in
America are prime examples of this type of implicit comparison. Within
constitutional studies, Alexei Trochev’s detailed account of the Russian
Constitutional Court’s ‘difficult childhood’ years, and of its jurisdictional
‘wars’ with other courts and the political sphere, makes a most valuable
contribution to the understanding of how newly established courts in
post-​transition settings begin to gain traction and authority.13 Likewise,

10
B. Ray, Engaging with Social Rights: Procedure, Participation, and Democracy in South
Africa’s Second Wave (Cambridge University Press, 2016).
11
C. Saunders, The Constitution of Australia: A Contextual Analysis (Hart Publishing, 2010);
S. Matsui, The Constitution of Japan: A Contextual Analysis (Hart Publishing, 2010); A.
Harding, The Constitution of Malaysia: A Contextual Analysis (Hart Publishing, 2012).
12
P. Oliver, P. Macklem and N. Des Rosiers (eds.), The Oxford Handbook of the Canadian
Constitution (Oxford University Press, 2017); S. Choudhry, M. Khosla and P.B. Mehta
(eds.), The Oxford Handbook of the Indian Constitution (Oxford University Press, 2016).
13
A. Trochev, Judging Russia: The Role of the Constitutional Court in Russian Politics
1990–​2006 (Cambridge University Press, 2008).

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 24 Ran Hirschl

Lisa Hilbink’s meticulous exploration of the culture of formalism and pas-

sivity in Chilean courts is a prime illustration of how a carefully crafted
constitutional ethnography of a single country can be pursued in a way
that contributes to general theory-​building.14
However, even without such a general contribution or other concrete
payoffs, ‘one can unapologetically study a foreign legal system simply
for its own sake.’15 As Tom Ginsburg argues (in the context of studying
Japanese law):

Even if one starts with a more instrumentalist premise, we cannot conceivably

know whether any particular legal rule or institution will be of broader theoretical
or practical interest until we know what it is we are looking at. And this requires
a certain degree of local knowledge, of willingness to understand legal systems on
their own terms. There is therefore virtue in having a group of scholars studying
foreign legal systems for their own sake, independent of the need to resolve any
particular theoretical or practical question.16

At the same time, qualitative studies in comparative constitutionalism

are expected to subscribe to the established norms of qualitative work in
other human sciences. Within the academic domain, they should not be
conflated with fabulous storytelling about constitutional loci overseas or
with over-​extrapolation from a very small yet frequently invoked set of
examples (e.g. the effect of the Brown v. Board of Education ruling, or
the constitutionalization of social and economic rights in South Africa).
Advocacy of qualitative approaches in comparative constitutional studies
must not be confused with methodological sloppiness or a retreat from
gold-​standard practices such as field or archival work, linguistic profi-
ciency, and close acquaintance with the history, culture, law and politics
of the studied polity.
A different level of abstraction is at the basis of comparative inquiry
meant to generate concepts and analytical frameworks for thinking critic-
ally about constitutional norms and practices. This mode of comparative
constitutional scholarship involves a quest for a detailed understanding
of how people living in different cultural, social and political contexts
deal with constitutional dilemmas that are assumed to be common to
14
L. Hilbink, Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile
(Cambridge University Press, 2007).
15
T. Ginsburg, ‘Studying Japanese Law Because It’s There’ (2010) 58 American Journal of
Comparative Law 15–​25, 15.
16
Id., 16.

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 Comparative Methodologies 25

most modern political systems. Its focus is not on a single jurisdiction, but
on a single practice (or a set of closely related practices) as carried out in
or encountered by different jurisdictions. More often than not, this type
of comparative scholarship takes a universalist tone, emphasizing the
broad similarity of constitutional challenges and functions across many
relatively open, rule-​of-​law polities. By studying various manifestations
of and solutions to roughly analogous constitutional challenges, our
understanding of key concepts in constitutional law, such as separation
of powers, statutory interpretation or equality rights, becomes more
sophisticated and analytically sharp. The intellectual end often sought
from this exercise is novel concept formation or the introduction of new
thinking tools through multiple description.
Works dealing with innovative mechanisms designed to mitigate the
tension between constitutionalism and democracy –​mechanisms such as
the Canadian Charter of Rights and Freedoms’ ‘limitation’ and ‘override’
clauses, the New Zealand Bill of Rights Act’s ‘preferential’ model of judi-
cial review, and the UK Human Rights Act’s ‘declaration of incompati-
bility’ –​provide a good substantive illustration of the ‘concept formation
through multiple description’ approach. Drawing on a comparative exam-
ination of such mechanisms, comparativists such as Stephen Gardbaum
and Mark Tushnet have introduced the concept of the ‘Commonwealth
model of judicial review’ or ‘weak-​form judicial review’. In doing so, they
have enriched and brought new life to the debate about the questionable
democratic credentials of constitutionalism in the United States.17 Similar
research design logic underlies other important comparative constitu-
tional works of the concept formation genre, for example Yaniv Roznai’s
Unconstitutional Constitutional Amendments;18 Gary Jacobsohn’s
masterful formation of the concept of constitutional identity;19 and Vicki
Jackson’s introduction of modes of engagement with foreign consti-
tutional jurisprudence in a transnational era.20 This mode of inquiry is
also prevalent in edited collections devoted to the analysis of a given

17
See, e.g., S. Gardbaum, The New Commonwealth Model of Constitutionalism: Theory
and Practice (Cambridge University Press, 2013); M. Tushnet, Weak Court, Strong Rights
(Princeton University Press, 2009).
18
Y. Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment
Powers (Oxford University Press, 2017).
19
G.J. Jacobsohn, Constitutional Identity (Harvard University Press, 2010).
20
V.C. Jackson, Constitutional Engagement in a Transnational Era (Oxford University
Press, 2010).

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 26 Ran Hirschl

constitutional phenomenon across countries; here, a thematic introduc-

tion sets up the stage for a series of country chapters.21 Hence, concept
formation through multiple description. In recent years, an advanced
version of this genre of edited collections combines various theoretical
and theme-​based essays with a selection of individual polity chapters by
country experts, to provide a comprehensive, in-​depth theoretical and
empirical account of important constitutional phenomena (e.g. demo-
cratic backsliding, illiberal constitutionalism).22
Another type of comparative constitutional studies differs from con-
cept formation in that it aims to engage in theory testing and explanation
through causal inference. At the most abstract level, this type of scholar-
ship is concerned with how two or more things or processes are related,
why a certain phenomenon is happening, and why it is happening the
way it is. Causation, however loosely or rigorously perceived, is a key
element, perhaps even the main marker of identity of this scholarly enter-
prise. Controlled comparison and methodologically astute case selection
and research design are critical to accomplishing these goals. There must
also be a clear distinction between conditionality (a given phenomenon
cannot occur without condition X, but that condition is not the cause
of the phenomenon) and causality, as well as between direct factors and
intervening factors, and between necessary and sufficient conditions.
Systematic examination of a small number of carefully selected cases
(small-​N), and statistical analysis of large data sets (large-​N) are the two
main research designs deployed in this inference-​oriented mode of com-
parative constitutional studies. In his classic A System of Logic, John
Stuart Mill spoke of a ‘method of difference’ and a ‘method of agreement’
in selecting comparative cases.23 Using this method of inferential
reasoning, comparative political scientists have for generations developed
and applied various case selection ideal-​types in the small-​N mode of
theory.24 These ideal-​types include: (i) the ‘most similar cases’ principle

21
See, e.g., A.H.Y. Chen (ed.), Constitutionalism in Asia in the Early Twenty-​First Century
(Cambridge University Press, 2014); T. Groppi and M.-​C. Ponthoreau (eds.), The Use of
Foreign Precedents by Constitutional Judges (Hart Publishing, 2013).
22
See M. Graber, S. Levinson and M. Tushnet (eds.), Constitutional Democracy in Crisis?
(Oxford University Press, 2018).
23
J.S. Mill, A System of Logic, Ratiocinative and Inductive (Longmans, Green, & Co., 1906).
24
A sophisticated body of literature in political science deals with inference-​oriented case-​
selection principles in single-​case study or small-​N research designs. See, e.g., J. Gerring,
Case Study Research: Principles and Practices (Cambridge University Press, 2007);

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 Comparative Methodologies 27

(comparison of cases that, as much as possible, are identical but for the
factors of causal interest); (ii) the ‘most different cases’ principle (com-
parison of cases that are different but for the factors of causal interest); (iii)
the ‘prototypical cases’ principle (the studied cases feature as many key
characteristics as possible that are found in a large number of cases); (iv)
the ‘most difficult case’ principle (if a theory passes a ‘most difficult’ test
case, our confidence with its predictions increases; conversely, if a claim
or hypothesis does not hold true in a ‘most likely’ or a ‘most favourable’
case, its plausibility is severely undermined); and (v) the ‘outlier cases’
principle (studying case or cases that are not adequately explained by
extant theories; because the studied phenomenon occurs frequently or in
a significant fashion absent of the known causes or existing explanations,
there ought to be another explanation).25
Two additional points are worth bearing in mind in this context. First,
longitudinal comparisons of the same constitutional setting over a long
stretch of time may be as instructive as cross-​national comparisons. This
may also serve as a more general cautionary note that contemporary
discussions in comparative constitutional law often proceed as if there
is no past, only present and future.26 The reality is that the migration
of constitutional ideas and critical encounters with the constitutive
laws of others have been taking place long before the last few decades.
Methodologically astute researchers should bear this in mind, and draw
on longitudinal comparisons when applicable. Second, while mastery
of context and language when studying a given constitutional setting
remain essential, examining common patterns across different settings
becomes easier as certain variants of constitutionalism become exceed-
ingly common worldwide. Applying common sense is essential: clearly,
an old water well and the concept of infidelity are hardly comparable.
But a duck and a stork are. In other words, comparability requires unity

C. Ragin, Redesigning Social Inquiry: Fuzzy Sets and Beyond (University of Chicago Press,
2008); C. Ragin, Fuzzy-​Set Social Science (University of Chicago Press, 2000).
25
For a detailed elaboration and illustrations of the basic logic of each of these case selec-
tion principles and their deployment in contemporary comparative constitutional studies,
see R. Hirschl, ‘The Question of Case Selection in Comparative Constitutional Law’
(2005) 53 American Journal of Comparative Law 125–​156, and R. Hirschl, Comparative
Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press,
2014), 224–​281.
26
R. Hirschl, ‘Remembrance of Things Past’ (2015) 13 International Journal of Constitutional
Law 1–​8.

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 28 Ran Hirschl

and plurality.27 Plurality is essential, as there is not much sense in com-

paring things that are perfectly identical; little would be gained by such a
comparison. Likewise, there is hardly any utility in comparing things that
share little or nothing in common. Either way, a plausible proposition in
this regard is that there are areas of constitutional jurisprudence –​most
notably the interpretation of rights –​where cross-​jurisdictional refer-
ence is more likely to occur than in other areas, such as the more aspir-
ational or organic (e.g. federalism, separation of powers and amending
procedures) features of the constitution, where national idiosyncrasies
and contingencies are more prevalent.28
As mentioned earlier, the ‘most similar cases’ principle is the most
commonly drawn upon research design and case selection principle in
inference-​oriented small-​N studies. Tom Ginsburg’s Judicial Review in
New Democracies –​a carefully constructed comparative study of the
catalysts behind the emergence of independent constitutional review
regime during the early stages of democratic liberalization in post-​
authoritarian polities –​is an example of an effective application of the
‘most similar cases’ methodology to the study of comparative constitu-
tionalism.29 Ginsburg’s argument –​judicial review is a solution to and a
function of the problem of uncertainty in constitutional design –​is carried
out through an exploration of the formation of constitutional courts, and
the corresponding judicialization of politics, in three new Asian democ-
racies: Taiwan, Mongolia and Korea. The three countries share a roughly
similar cultural context. Each underwent a transition to democracy in the
late 1980s and early 1990s, and in each the newly established constitu-
tional court has struggled to maintain and enhance its stature within a
political environment that lacks an established tradition of judicial inde-
pendence and constitutional supremacy. Despite these commonalities,
however, there has been significant variance in judicial independence
among the three countries.
Another commonly invoked research design principle in ‘small-​ N’
comparative constitutional law is the ‘prototypical cases’ logic. A couple

27
C. Valcke, ‘Comparative Law as Comparative Jurisprudence –​The Comparability of Legal
Systems’ (2004) 52 American Journal of Comparative Law 713–​740, 720–​721.
28
See generally V.C. Jackson, ‘Comparative Constitutional Federalism and Transnational
Judicial Discourse’ (2004) 2 International Journal of Constitutional Law 91–​138.
29
T. Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases
(Cambridge University Press, 2003).

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 Comparative Methodologies 29

of books that draw on such a design to question the supposed uni-

formity of proportionality analysis in comparative constitutional jur-
isprudence provide textbook illustrations. In their book Proportionality
and Constitutional Culture, Moshe Cohen-​Eliya and Iddo Porat present a
detailed comparison of the origins and practice of proportionality ana-
lysis in Germany and balancing analysis in the United States to advance
the argument that the scope and nature of proportionality/​balancing ana-
lysis in a given polity may be affected by the concrete origins of the prac-
tice as well as the legal, political and philosophical culture in that polity.30
Whereas in Prussia, to pick one aspect of this comparative analysis, ‘pro-
portionality stepped into the vacuum created by the absence of consti-
tutional protection for rights, and introduced into administrative law an
element of rights-​protection through the notion of the rule of law’, in the
United States balancing emerged as a rights-​limiting mechanism that, in
lieu of a limitations clause in the Bill of Rights, facilitated a pragmatic,
rights-​restricting jurisprudential approach in cases involving conflicting
interests. The particular historical context, Cohen-​Eliya and Porat show,
‘shaped the conception of these doctrines: proportionality as pro-​rights
and balancing as pragmatic and limiting rights.’ They go on to illustrate
that political culture accounts for the centrality and the intrinsic value
accorded proportionality in German constitutional law as an effective
means for shaping and optimizing German society’s values, as opposed to
the relative marginalization of balancing in American constitutional law
and its conceptualization as a pragmatic exception to the construction of
rights as categorical limitations on state power. In short, the conceptual-
ization of proportionality analysis may vary from one polity to another;
the differences may be culturally based.31
A different variant of this mode of inquiry in comparative constitution-
alism is evident in edited volumes featuring collections of single-country
accounts of constitutional law in a selection of polities within a given

30
M. Cohen-​ Eliya and I. Porat, Proportionality and Constitutional Culture (Cambridge
University Press, 2013). For a similar research design, theme and case studies, see J.
Bomhoff, Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal
Discourse (Cambridge University Press, 2014).
31
An earlier illuminating example of inference-​ oriented small-​N ‘prototypical cases’
research design in comparative constitutional reasoning is Mitchel Lasser’s compara-
tive account of constitutional reasoning styles. See, Mitchel de S.-​O.-​l’E. Lasser, Judicial
Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford
University Press, 2004).

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 30 Ran Hirschl

region or continent (e.g. South East Asia, Latin America, post-​communist

Europe, etc.).32 The underlying research design logic of this sort of com-
parative work is that, taken as a whole, the comparison of various consti-
tutional elements in polities that share pertinent historical, legal, political
and cultural background factors implicitly follows a ‘most similar cases’
logic, thereby facilitating the identification of pan-​ regional or pan-​
continental patterns of convergence or divergence on any given consti-
tutional axis. A number of such collections that focus on the European
scene follow instead a ‘most different cases’ logic, deployed to help assess
the effects of the emerging pan European constitutional regime on con-
stitutional law within a number of very different polities that are all sub-
ject to that regime (e.g. the twenty-​eight-​member European Union or the
forty-​seven-​member Council of Europe and its European Convention of
Human Rights).33 In so doing, these collections aim to assess the effects of
a similar, across-​the-​board exogenous ‘treatment’ on different constitu-
tional cultures and traditions.
At the nomothetic end of the generalization spectrum in comparative
constitutional inquiry stand large-​N studies that aim to generate widely
transferable insights (nomothetic knowledge) through analyses of large
sets of observations, and ideally even the entire studied population. In
simplistic terms, the idea here is to study the entire constitutional forest,
not individual constitutional trees. Such an approach might provide a
response to heuristics and case-​selection biases, as well as to the limited
generalizability associated with single-​case and small-​N research. With
many phenomena, the sheer number of cases makes a complete analysis
infeasible. However, when it comes to studying the world’s constitutions,
the full number of cases is still only in the hundreds. For many purposes
this is a manageable number, and as long as quantitative studies limit
themselves to what they can plausibly extract and deduce from constitu-
tional texts (and possibly other cross-​national indicators), they should be
a most welcome addition to comparative constitutional studies. Large-​N
analyses are particularly useful as a means to consider broader trends in

32
E.g. M. Tushnet and M. Khosla (eds.), Unstable Constitutionalism: Law and Politics
in South Asia (Cambridge University Press, 2016); R. Dixon and T. Ginsburg (eds.),
Comparative Constitutional Law in Latin America (Edward Elgar, 2017); A. Fruhstorfer
and M. Hein (eds.), Constitutional Politics in Central and Eastern Europe (Springer, 2017).
33
See, e.g., A. Jakab and D. Kochenov (eds.), The Enforcement of EU Law and Values: Ensuring
Member States’ Compliance (Oxford University Press, 2017).

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 Comparative Methodologies 31

constitutionalism –​to focus on the general picture, not on specific details

or individual observations. If properly executed, such analyses may like-
wise elude the clichés, heuristics and biases that emerge from decades of
over-​studying a handful of cases and instead become able to actually test
some of the canonical insights of constitutional theory or shed new light
on causal links within the constitutional universe.
This mode of inquiry becomes exceedingly relevant in the relent-
less global convergence towards constitutionalism and as increasingly
comprehensive databases and advanced information technology make a
rich body of pertinent information readily available to researchers and
scholars worldwide. It is now possible –​perhaps for the first time –​to
engage in serious, methodological, interdisciplinary dialogue between
ideas and evidence, theory and data, normative claims, and empirical
analysis. In so doing, large-​N studies of comparative constitutional phe-
nomena may help alleviate the legitimate concerns over ‘cherry-picking’
raised by opponents of a-​systematic reference to foreign legal sources
and may likewise mitigate the overreliance on a small number of ‘usual
suspect’ constitutional settings (at the expense of over 150 others) by
treating all constitutions as equally worthy of observation or status as
data points.34
The number of large-​ N constitutional studies published to date
remains modest, but it has been growing exponentially in recent years.
It has been drawn upon to assess the global decline of American con-
stitutional legacy;35 to determine why countries adopt constitutional
review;36 to trace and explain patterns of judicial decision-​making in

34
This may be the right place to say that the common focus in much of the literature on
the constitutional ‘North’ betrays not only certain epistemological and methodological
choices but also a normative preference for some concrete set of values that the ‘Northern’
setting seems to uphold. The near-​exclusive focus on a dozen liberal democracies in com-
parative constitutional law reflects the field’s deeply liberal bent. But moving away from
its normative facet to the positivist, real-​life one, the relevance of the Global South cri-
tique becomes more qualified. Whether the selective Northern (or ‘Western’) emphasis in
comparative constitutional law limits the applicability or value of canonical scholarship
in the field hinges on the specific question being posed. A given constitutional setting
may belong to the Global South in one context or comparative dimension, but not in
another.
35
D. Law and M. Versteeg, ‘The Declining Influence of the United States Constitution’ (2012)
87 NYU Law Review 762–​858.
36
T. Ginsburg and M. Versteeg, ‘Why Do Countries Adopt Constitutional Review?’ (2014) 30
Journal of Law, Economics and Organization 587–​622.

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 32 Ran Hirschl

constitutional adjudication,37 or patterns of constitutional court refer-

ence to foreign law;38 to examine the global spread of economic and
social rights;39 to measure the effects of such rights;40 and to study
the efficacy of constitutional mechanisms such as formal amendment
rules or term limits.41
A notable example of how large-​N studies may contribute to compara-
tive constitutional studies is The Endurance of National Constitutions by
Zachary Elkins, Tom Ginsburg and James Melton.42 At the core of this
pioneering book is an ostensibly simple question: ‘Why do the lifespans
of national constitutions vary? Why is it that some live much longer than
others?’ To answer this, the authors build a data set of constitutions of the
world from 1789 to 2005 –​a mere 216 years of modern constitutionalism.
The data reveal some stunning results (e.g. while constitutions are written
to last, they vary considerably in terms of their endurance; only half of
all constitutions last more than nine years, with an overall average of less
than twenty years). It also shows that while extra-​constitutional factors
do affect a constitution’s endurance, design choices matter more. All
things considered, enduring constitutions tend to be specific, to emerge
by virtue of a relatively open drafting stage that engenders ‘buy-​in’ by
diverse constituencies, and to be adaptable as a result of amending for-
mulae and provisions for incorporating modern practices. These three
design choices ‘result from the constitution-​making process itself, but are
also features of ongoing practice. All three mutually reinforce each other

37
See, e.g., G. Helmke, Courts Under Constraints: Judges, Generals, and Presidents in
Argentina (Cambridge University Press, 2005); S. Dothan, Reputation and Judicial Tactics
(Cambridge University Press, 2014); J. Segal and H. Spaeth, The Supreme Court and the
Attitudinal Model Revisited (Cambridge University Press, 2002).
38
E. Mak, ‘Reference to Foreign Law in the Supreme Courts of Britain and the
Netherlands: Explaining the Development of Judicial Practices’ (2012) 8 Utrecht Law
Review 20–​34; E. Mak, Judicial Decision-​Making in a Globalised World: A Comparative
Analysis of the Changing Practices of Western Highest Courts (Hart Publishing, 2013).
39
C. Jung, R. Hirschl and E. Rosevear, ‘Economic and Social Rights in National Constitutions’
(2015) 62 American Journal of Comparative Law 1043–​1094.
40
A. Chilton and M. Versteeg, ‘Rights Without Resources: The Impact of Constitutional
Social Rights on Social Spending’ (2017) 60 Journal of Law and Economics 713–​748.
41
T. Ginsburg and J. Melton, ‘Does the Constitutional Amendment Rule Matter at All?’
(2015) 13 International Journal of Constitutional Law 686–​713.
42
Z. Elkins et al., The Endurance of National Constitutions (Cambridge University Press,
2009).

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 Comparative Methodologies 33

to produce a vigorous constitutional politics in which groups have a stake

in the survival of the constitution.’43
As with any other research design and case selection approach, a compara-
tive constitutional scholar needs to tread with caution when considering the
suitability of a large-​N study for her planned study. The apparent weaknesses
of large-​N studies have been addressed repeatedly, most notably (though
not exclusively) by proponents of contextual, purportedly deeper research.44
Perhaps most significant for the study of constitutionalism is that large sta­
tistical data sets tend to overlook context or take it too lightly, ignore the
crucial ‘law on the ground’ or ‘soft law’ aspects. Subsequently, it is quite
common to take issue with large-​N studies’ marked difficulty capturing the
vital nuance and the multilayered –​social, cultural and political –​context
in which constitutional development occurs. Concepts such as ‘constitutional
identity’ or ‘constitutional culture’ are not easily amenable to inquiry that is
insensitive to details, stripped of nuance and context, and reliant on over-
simplified coding schemes.
Extant data sets of constitutional texts do not tell us much, if anything,
about constitutional interpretation by courts or on-​the-​ground implemen-
tation and impact (in fairness, those studied do not aim to address that
type of issue). More generally, large-​N studies often focus on observable
or quantifiable phenomena but lack the tools to deal with non-​observable,
non-​quantifiable ones. Consequently, they tend to focus on questions
and phenomena that lend themselves a priori to quantitative analysis
of concrete observations. This, in turn, may lead to what Ian Shapiro
succinctly describes as ‘a flight from reality in the human sciences’.45
As well, it is sometimes argued that large-​N studies pour tremendous
effort into sophisticated data-​analysis techniques, possibly at the expense
of net theoretical yield or substantive ingenuity.
There is more than a kernel of truth in all these concerns. Yet, ana-
lyses of large data sets are still a valuable addition to theory-​building

43
Id., 89.
44
For a critique of economics’ reliance on numbers to capture the complex nature of law
in various contexts, see P. Legrand, ‘Econocentrism’ (2009) 59 University of Toronto Law
Journal 215–​222. Legrand begins his critique with an epigraph quote from Nietzsche: ‘the
reduction of all qualities to quantities is nonsense.’ For further discussion see H. Spamann,
‘Empirical Comparative Law’ (2015) 11 Annual Review of Law & Social Science 131–​153.
45
I. Shapiro, The Flight from Reality in the Human Sciences (Princeton University Press,
2005).

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 34 Ran Hirschl

and testing in comparative constitutional studies. To be clear, the

claim here is not that explanation, causality or numerical comparative
inquiry should serve as the field’s golden standard or intellectual Holy
Grail. However, as Mila Versteeg, one of the leading young voices in
what may be termed ‘empirical constitutional studies’ suggests that
‘the field of comparative constitutional law is filled with causal claims,
including, inter alia, the following notions: constitutions constrain gov-
ernment; judicial review protects human rights; socio-​economic rights
are unenforceable; and constitutional law is converging upon a global
paradigm. These claims, which often take the form of unarticulated
assumptions, are essentially empirical claims that have largely gone
untested.’46 Along similar lines, Frederick Schauer, one of America’s
most prominent constitutional thinkers, suggests that the intuitions
and hunches of law professors concerning the impact of constitutional
law ought to be subject to empirical testing. He asks: ‘[D]‌oes consti-
tutional law make a difference to official behavior? Do the texts of
constitutions influence official action? Do the emanations of courts
affect the actions of officials? Affirmative answers to these questions
are commonly assumed, but perhaps the time is ripe to examine such
assumptions more critically in comparative context.’47 When taken
with a healthy dose of scepticism and awareness to their acknowledged
limitations, empirical studies on the effects of constitutional texts,
traditions, designs and rulings can only contribute, not harm the state
of knowledge on these matters.

3 Cross-​Disciplinary, Multi-​Method and

Collaborative Research

Around the world, in numerous countries and in several transnational

entities, constitutional law plays a key role in regulating politics and in
delineating the scope of rights protections. Because the complex sym-
bioses of today’s world admit neither constitutionalism-​ free political

46
A. Meuwese and M. Versteeg, ‘Quantitative Methods for Comparative Constitutional Law’,
in M. Adams and J. Bomhoff (eds.), Practice and Theory in Comparative Law (Cambridge
University Press, 2012), 233.
47
F. Schauer, ‘Comparative Constitutional Compliance: Notes Towards a Research Agenda’,
in M. Adams and J. Bomhoff (eds.), Practice and Theory in Comparative Law (Cambridge
University Press, 2012), 213.

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 Comparative Methodologies 35

systems nor apolitical constitutional law, it is increasingly common

for comparative constitutional inquiry to embrace an interdisciplinary
approach. Consequently, the array of research methods deployed in com-
parative constitutional inquiry has expanded beyond traditional legal
analysis of legislation, jurisprudence and reasoning, to the deployment
of social science methods such as interview fieldwork and participatory
observations, archival work, surveys, assembling and statistical analysis
of large data sets, game theory and formal modelling, computerized con-
tent analysis or the study of constitutional diffusion and convergence
through network science.
This does not detract from the power of doctrinal analysis per se.
The more prevalent constitutional terminology and constitutional juris-
prudence become in addressing core ethical, political and public policy
dilemmas, the more relevant mastery of doctrinal constitutional analysis
turn out to be. Comparative constitutional law professors hold a clear and
undisputed professional advantage in their ability to identify, dissect and
scrutinize the work of courts and to critically assess the persuasive power
of a given judge’s opinion. Understanding jurisprudence on its own terms
or explicating modes of judicial reasoning and interpretation has tra­
ditionally been the domain of law professors. As long as comparative con-
stitutional analysis is focused on these facets, no one is better positioned
to pursue it than law professors well-​versed in doctrinal legal analysis.
However, theorizing about the constitutional domain of a broader
world requires closer engagement with and openness towards disciplines
that study the broader context with which constitutions and constitu-
tional institutions constantly and organically interact. It requires some
familiarity with the history of modern constitutional thought (the field’s
ever-​expanding terminology includes phrases such as ‘liberal constitu-
tionalism’, ‘authoritarian constitutionalism’, ‘global constitutionalism’ or
‘theocratic constitutionalism’); awareness to the study of judicial behav-
iour (an overwhelming body of evidence suggests that extrajudicial factors
play a role in constitutional court decision-​making); an understanding
of the origins of constitutional change and stalemate (a variety of the-
ories point to the significant role of ideational and strategic factors in
both); the promise and pitfalls of various constitutional designs (the rele-
vance of the social, political and cultural context in settings where such
designs are deployed is obvious); and the study of the actual capacity
of constitutional jurisprudence to induce real change on-​ the-​
ground,

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 36 Ran Hirschl

independently of or in association with other factors (the social sciences

are essential for studying the actual effects of constitutions beyond the
courtroom). Contributions to these types of comparative constitutional
scholarship require a researcher to adjust her research design and meth-
odological approach to better fit the study’s thematic goal or aim. The
question then is not why engage in interdisciplinary comparative consti-
tutional inquiry –​few open-​minded legal scholars or intellectually honest
­political scientists would disagree that in an ideal world that would be
a preferable approach –​but rather how should such an interdisciplinary,
multi-​method inquiry be effectively pursued.
The interdisciplinary turn in comparative constitutional inquiry
encounters some obvious resistance from both sides of the disciplinary
divide. Such resistance has much to do, I suspect, with various training,
vocational and sociology of knowledge factors, most notably political
scientists and sociologists’ inclination to conceptualize the constitutional
domain as mere reflection of broader societal, political or cultural forces
and undercurrents, as well as the vocational and licensing aspects of legal
education and the legal profession’s collective interest in maintaining
the autonomous and a political image of constitutional law. It remains
to be seen whether the multi-​faceted nature of constitutionalism world-
wide continues to promote interdisciplinary inquiry in comparative con-
stitutionalism or whether professional interests in maintaining doctrinal
boundaries prevail.
Under any scenario, comparative constitutional inquiry requires a fair
degree of knowledge about and expertise in the studied jurisdictions
and their political context in addition to their legal and constitutional
traditions. This is no easy task, even if it has been facilitated somewhat
by dramatic advancements in information technology and the improved
availability of pertinent comparative materials. It likewise necessitates
rich linguistic skills and jurisdiction-​ specific acquaintance with so-​
called ‘small-​c’ constitutionalism –​the de facto, on-​the-​ground practice,
meaning and power of constitutional law, constitutional ideals and con-
stitutional norms in a given polity, in addition to acquaintance with that
polity’s ‘large-​C’ constitutionalism, namely the formal, de jure or textual
elements of the constitutional domain. Taken as a whole, these and other
related difficulties embedded in the comparative study of constitutionalism
across time and place call for greater emphasis, already underway in some
respects, on jointly authored work and greater openness to collaborative

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 Comparative Methodologies 37

group projects that address similar constitutional phenomena.48 It like-

wise suggests that multi-​method research projects –​studies that combine
various legal and social science research designs, or blend qualitative and
quantitative research methods may be gaining momentum in the years to
come.49 Such multi-​method research is underpinned by the principle of
triangulation, which means that researchers should ensure they are not
over-​reliant on a single research method, and should instead follow more
than one measurement procedure when investigating a research problem.
In this way, multi-​method research enhances confidence in findings.
Among its many advantages, collaborative, multi-​ method research
projects may help alleviate one of the lingering challenges in comparative
constitutional law –​the field’s long-​standing reliance on a small number
of overanalysed, ‘usual suspect’ constitutional settings or court rulings
that do not necessarily represent the entire constitutional universe while
the constitutional experiences of entire regions, mostly in the Global
South –​from sub-​ Saharan Africa to Central America and to Central
and South East Asia –​remain understudied and generally overlooked.
Whereas no student of comparative constitutionalism may consider her-
self a master of the field without exposure to the constitutional legacy of
the United States, the innovative features of the Canadian constitution or
the extensive jurisprudence of the European Court of Human Rights, she
must likewise question the validity of purportedly universal insights that
are based on a handful of frequently studied and not always representa-
tive settings or cases.

Conclusion

The renaissance of comparative constitutionalism has been characterized

by blissful methodological pluralism. Indeed, no concept of
constitutionalism’s scope and nature can be exhaustively and compara-
tively assessed using a single research design, approach or method. Thus,
there is no, and there cannot be, a single, unified ‘official’ method in the
comparative study of constitutional law, constitutional institutions and

48
See R. Dixon, ‘Towards a Realistic Comparative Constitutional Studies’ (2016) 64 American
Journal of Comparative Law 193–​199.
49
See, generally, L.B. Nielsen, ‘The Need for Multi-​Method Approaches in Empirical Legal
Research’, in P. Cane and H. Kritzer (eds.), The Oxford Handbook of Empirical Legal
Research (Oxford University Press, 2010), 951–​975.

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 38 Ran Hirschl

constitutional practice. That said, collective understanding of what may

be considered methodologically sound scholarship is the hallmark of every
thriving discipline or research enterprise. Appreciation of and attention
to the nature of various comparative methodologies and their compati-
bility with the various meanings, types, aims and purposes of compara-
tive constitutional inquiry are vital for the continuation of the field’s
current renaissance. When executed poorly (fortunately, a diminishing
act), comparative constitutional inquiry may amount to little more than
result-​oriented cherry-​picking of favourable cases, which is precisely the
kind of practice that opponents of reference to foreign law (most notably
the late Antonin Scalia of the US Supreme Court) base their objections
on. Precisely because the concern with the a-​systematic ‘cherry-​picking’
of ‘friendly’ examples may not be easily dismissed, those who wish to
engage in systematic comparative work ought to pay closer attention
to research methods, and the philosophy of comparative inquiry more
broadly. The response to the cherry-​picking concern is not to abandon
comparative constitutional work; rather, it is to engage in compara-
tive work while being mindful of key historical foundations, ontological
distinctions, epistemological directions, and methodological consider-
ations that define comparative constitutional inquiry as a distinct area of
scholarship and practice.

Further Reading

S. Gardbaum, ‘How Do and Should We Compare Constitutional Law’, in Samantha

Besson et al. (eds.), Comparing Comparative Law (Schulthess, 2017), 109–​126.
R. Hirschl, ‘The Question of Case Selection in Comparative Constitutional Law’
2005 53 American Journal of Comparative Law 125–​155.
‘From Comparative Constitutional Law to Comparative Constitutional Studies’
2013 11 International Journal of Constitutional Law 1–​12.
Comparative Matters: The Renaissance of Comparative Constitutional Law
(Oxford University Press, 2014).
V.C. Jackson, ‘Methodological Challenges in Comparative Constitutional Law’
2010 28 Penn State International Law Review 319–​326.
‘Comparative Constitutional Law: Methodologies’, in Michel Rosenfeld and
András Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law
(Oxford University Press, 2012), 54–​74.
A. Meuwese and M. Versteeg, ‘Quantitative Methods for Comparative Constitutional
Law’, in Maurice Adams and Jacco Bomhoff (eds.), Practice and Theory in
Comparative Law (Cambridge University Press, 2012), 230–​256.

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 Comparative Methodologies 39

M. Reimann, ‘Comparative Law and Neighboring Disciplines’, in Mauro Bussani

and Ugo Mattei (eds.), The Cambridge Companion to Comparative Law
(Cambridge University Press, 2012), 13–​34.
K.L. Scheppele, ‘Constitutional Ethnography: An Introduction’ 2004 38 Law &
Society Review 389–​406.
M. Tushnet, ‘The Possibilities of Comparative Constitutional Law’ 1999 108 Yale
Law Journal 1225–​1309.

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